An earlier article in this series concerned so-called "Blaine
Amendments," after a constitutional amendment proposed by then Congressman
James Blaine in 1875, with the encouragement of Pres. Ulysses Grant. The
primary purpose was to prohibit aid to Catholic schools. That attempt failed
but the idea was enshrined in 29 state constitutions within the next 15
years where they remain, accompanied by a few others adopted since then.

A number of responses were received, including, recently, an inquiry
about states with such amendments. The reply to that inquiry is herein
expanded to provide not only that information but evidence that this enshrined
bigotry is finally getting long overdue attention.

One very important incident came in January, 1999. Arizona had adopted
a universal tuition tax credit plan whereby individuals could receive up
to a $500 tax credit for a contribution to nonprofit School Tuition Organizations
(STOs) and $200 for contributions for specific purposes in public schools.
Taken to court, the result was a January 1999 decision by the Arizona Supreme
Court, Kotterman v. Killian, that such credits are constitutional under
both the state and federal constitutions. The 84 pages of the decision
is well worth reading. It is online at http://www.supreme.state.az.us/opin/pdf99/dv970412.pdf.
Both the majority and dissenting opinions referred to Blaine, with the
following drawn from the majority view:

"The dissent relies to a great extent on external, peripheral
sources such as the Blaine amendment, introduced in Congress more than
100 years ago...The Blaine amendment was a clear manifestation of religious
bigotry, part of a crusade manufactured by the contemporary Protestant
establishment, to counter what was perceived as a growing "Catholic menace."
It supporters were neither shy nor secretive about their motives...contemporary
sources labeled the amendment part of a plan to 'institute a general war
against the Catholic church.' While such efforts were unsuccessful at the
federal level, the jingoist banner persisted in some states. By 1890, twenty-nine
states had incorporated at least some language reminiscent of the Blaine
amendment in their own constitutions. There is, however, no recorded history
directly linking the amendment with Arizona's constitutional convention.
In our judgment, it requires significant speculation to discern such a
connection. In any event, we would be hard pressed to divorce the amendment's
language from the insidious discriminatory intent that prompted it."

A second recent example has found The Becket Fund for Religious Liberty
taking on this issue publicly, in particular waging a legal battle to remove
Blaine restrictions in Massachusetts. While not yet successful, an issue
with a history of more than 125 years is not one to be resolved lightly.
This is particularly so since few are aware of its background and accept
it as a given, even placed in the First Amendment by the Founding Fathers
which, of course, it was not.

A third encouraging sign, came June 28, when the U.S. Supreme Court,
in its 6-3 Mitchell v. Helms decision, upheld the provision of computers
and other materials to students in religious schools. Justice Clarence
Thomas, who wrote the majority opinion officially recognized the background
for this alleged church-state problem in education, when he wrote:

"[N]othing in the establishment clause requires the exclusion
of pervasively sectarian schools from otherwise permissible aid programs,
and other doctrines of this court bar it. This doctrine, born of bigotry,
should be buried now."

It should be but it won't be; at least not "now." Still, the journey has
at last begun.

The Arizona court reported Blaine amendments in 29 states by 1890, a
count at minor variance with the following list, which has 30 at that time,
and eight more subsequently.

Here's a chronological list by years of adoption of amendments to state
constitutions:

First, not all Blaine amendments are the same; some are much clearer
and stricter than others. The most severe is probably that adopted in Michigan
in 1970 which, because the term had appeared by then, explicitly includes
vouchers in its list of prohibitions.

Second, there is some question about including some of the states at
all. For example, some list Pennsylvania but many lawyers in the state,
both in the Administration and in private practice, don't agree and hold
that the problem is only with the federal courts. To date the issue has
not been specifically resolved by the Commonwealth's courts.

Third, the following list is indicative, not definitive, although it
is basically correct. State constitutions get amended from time to time,
not to mention court decisions, such as the one in Arizona. An example
of the former is, again, Michigan. That state, second in 1850, before Blaine
was on the national political scene, as noted, adopted its present extreme
wording in 1970.

In brief this battle over public and nonpublic schools did not originate
with the Founding Fathers, or the First Amendment. For one thing, there
weren't any public school systems at that time. The Founding Fathers were
themselves the products of religious schools, homeschooling, or were largely
self-taught.

The controversy has a great deal to do with religious bigotry and, in
1947, an unprecedented decision by the U.S. Supreme Court, Everson v. Board
of Education, Ewing Township, NJ, to link together the 1st and 14th Amendments,
thereby discovering a new constitutional principle. After all, the First
Amendment says, "Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof..."

Don't forget that "or prohibiting the free exercise thereof..." Most
opponents of school choice, or public display of religious sentiment do.
They only mention the first ten words, or even omit them, because the prohibition
is clearly on Congress and establishing a religion by which, at that time,
meant public funding for a national church, like the Church of England.
In fact, official churches had existed, or then still existed, in nine
of the new 13 states.

It's fair to note that the 14th Amendment had been adopted in the 1860s,
before Pres. Grant, Rep. Blaine, and others began the drive to abolish
aid to nonpublic schools which, by the way, had been common through the
first half of the 19th century. Obviously they saw no such link between
the 1st and 14th amendment. If they had they wouldn't have tried to amend
the Constitution to place within it something that was already there. The
1947 Court created this principle out of thin air. As Thomas Jefferson
and James Madison, among others, said, the growth of the Court's powers
was something to fear, and attempt to limit.

Finally, however, one more Berlin Wall is beginning to show a crack
- it may be only a hairline fracture but it is real and it will grow.

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Copyright 2000, David W. Kirkpatrick2323 Rudy Road, Harrisburg, Pennsylvania, 17104-2025Phone: (717) 232-2146, Fax: (717) 232-2164E-mail (tchrwrtr@aol.com)To use this material, see the conditions at the top of
the home page - DWK